Constitutional Coups, Foreign & Domestic

Jonathan Alder of Volokh Conspiracy notes a recent report by the Law Library of Congress, which discusses whether Honduran ex-President Zelaya was legally removed from office. Said report concludes:

Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.

However, removal of President Zelaya from the country by the military is in direct violation of the Article 102 of the Constitution, and apparently this action is currently under investigation by the Honduran authorities.

Interesting. Except for aspects of the military’s actions, it appears the recent Honduran coup was entirely constitutional.

It’s worth noting that, under the US Constitution, there are three modes whereby one might execute a “constitutional coup”.

First, there’s impeachment. Although, technically, a President can only be impeached for “high crimes and misdemeanors”, there is (AFAIK) no judicial review of impeachments. Ergo, in reality, “high crimes and misdemeanors” means whatever a majority of the House & two-thirds of the Senate want it to mean.

Second, there’s the Twenty-Fifth Amendment, which permits removal of a sitting President given the concurrence of the VP, a majority of the Cabinet, and two-thirds of each house of Congress. The latter makes this method less preferable than impeachment.

Finally, Congress could parcel out various Executive-branch functions to various agencies whose staff is not subject to Presidential supervision or removal – which basically describes the growth of the “administrative state”. The efficacy of this method is somewhat limited by the Art. II, Sec. 2, Clause 2’s requirement that the President participate (via nomination) in the appointment of all “Officers of the United States”.

And while we’re on the topic of domestic coups…it seems we (once again) have some Bright Light, by the name of John Perry, suggesting (*) the extra-constitutional variety. I suppose I could comment on this, but I already did so a few years back – after another Bright Light, by the name of Martin Lewis, suggested that the Joint Chiefs of Staff place President Bush under arrest.

(*) The original article was here, but appears to have been removed. Fortunately (or not), both the left & right wings of the blogosphere have seen fit to maintain copies of this particular seditious libel.